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11

Risks Reconsidered: Complex Issues in Establishing Factual Cause

INTRODUCTION

Most law students think of proximate cause as the Heartbreak Hill of the Torts marathon, the toughest problem in a course replete with tough intellectual issues. However, the real action today is in the cause-in-fact arena, where tort law is constantly butting heads against an intractable problem: the limits of human knowledge about cause and effect. There is a world of difference between a defendant causing injury to a plaintiff, on the one hand, and the plaintiff proving that she did, on the other. This chapter, for those of you courageous enough to press on, addresses a number of cutting-edge factual causation issues often encountered in the Torts course-and increasingly, in the practice of tort law.

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